In ALLGOOD v. BAPTIST MEMORIAL MEDICAL GROUP, INC., Case 2:19-cv-02323-SHM-cgc (W.D. Tenn. Jan. 3, 2022), before the Court was Plaintiff’s motion to compel production of Defendants’ purportedly privileged documents to the Court for in camera review.
Plaintiff was employed by Defendant Baptist Memorial Medical Group. On Oct. 10, 2018, Plaintiff made a report to corporate compliance that a cardiologist was billing for procedures that he did not perform or supervise. Two days later, Plaintiff became the subject of an investigation based on allegations that she violated the Health Insurance Portability and Accountability Act (“HIPPA”) by accessing medical records to confirm her suspicions of the cardiologist. According to Plaintiff, Defendants agreed to reinstate her to her previous position on Feb. 8, 2019, however, Defendants claimed that the decision to reinstate was made in Nov. 2019.
Plaintiff sought an order to compel Defendants to produce two emails identified in Defendants’ Second Amended Third Privilege Log that were identified as attorney-client privileges in the Second Privilege log from Oct. 12, 2018, through Dec. 20, 2018.
The basis of Plaintiff’s challenge to the attorney-client designation was that Defendants reviewed the privilege log entries and later determined that some of the entries were not subject to privilege after all. Plaintiff believed that Defendants over-designated and that there were still documents in the privilege log that are not properly protected by privilege.
Federal Rule of Civil Procedure 26(b)(3) protects (1) “”documents and tangible things”; (2) “prepared in anticipation of litigation or for trial”; (3) “by or for another party or its representative.” To determine whether a document has been prepared “in anticipation of litigation,” and thus is protected work product, the court asks: “(1) whether that document was prepared “because of” a party’s subjective anticipation of litigation, as contrasted with ordinary business purpose; and (2) whether that subjective anticipation was objectively reasonable.” United States v. Roxworthy, 457 F.3d 590, 594 (6th Cir.2006).
The questioned documents are two emails. The first was an Oct. 31, 2018 email from the Chief Human Resources Officer to in-house counsel, Privacy and Security Officer, Chief Operating Officer, Chief Executive Officer and Corporate Compliance Officer. The second was a Nov. 8, 2018, email from the Privacy and Security Officer to the Chief Human Resources Officer, Chief Operations Officer and in-house counsel.
The emails came to Plaintiff’s attention during the Sept. 29, 2020 deposition of Kay Ragan. An internal report noted that Ms. Ragan attached “emails with resolution regarding access.pdf” on Nov. 2, 2018. At the deposition, Defendants’ counsel stated that the emails referenced in the report had been produced. On June 25, 2021, Defendants’ counsel affirmed that the emails were produced.
However, on July 8, 2021, Defendants’ counsel stated in an email that the emails in question had not been produced and would be included on a subsequent privilege log. Defendants designated both documents as attorney-client communications and attorney work product.
Plaintiff argued that the description of these documents as “information gathered at the request of counsel in forming a legal impression” was not a basis for asserting attorney-client privilege. However, as noted by the Court, “[c]ommunications among non-attorneys in a corporation may be privileged if made at the direction of counsel, to gather information to aid counsel in providing legal services.” EPAC Techs., Inc. v. Thomas Nelson, Inc., No. 3:12-CV-00463, 2015 WL 13729725, at *2 (M.D. Tenn. Dec. 1, 2015). In the Court’s opinion, the description offered by Defendants was consistent with privilege.
Plaintiff further argued that even if the documents were privileged, Defendants waived the privilege by their failure to identify the documents in earlier privilege logs. Plaintiff relied on Nieves v. Baptist Mem’l Med. Grp., Inc., No. 18-2748-JTF, 2020 WL 3441900 at *2 (W.D. Tenn. June 23, 2020) in support of this contention. In Nieves, Chief Magistrate Judge Pham held that because Baptist did not include documents in its initial privilege log and did not reply to communication attempts by opposing counsel, Baptist waved such privilege.
Defendants responded that there was no basis upon which to waive the privilege as the emails were included in the First Privilege Log dated Jan. 30, 2020, and that all of the privilege logs were served within the discovery period. However, the statement that the emails were included on the First Privilege Log was contradicted by Defendants’ counsel’s repeated assurances that the emails were produced to Plaintiff and the fact that there was no Nov. 8, 2018, email listed on the First Privilege Log.
Because the Nov. 8, 2018, email was not included on the initial privilege log and Defendants did not assert privilege over the document until July 8, 2021, despite numerous requests for the document, the Court found that the privilege to Nov. 8, 2018, email was waived. The Oct. 31, 2018, email was properly and timely designated as being withheld subject to attorney-client privilege and was not required to be produced.
As to the emails that were identified as attorney-client privileged in the First and Second Privilege Log from Oct. 12, 2018, through Dec. 20, 2018, Plaintiff based her request for the documents on an assumption that neither attorney-client privilege nor work product doctrine precluded production of the documents. Plaintiff relied on the fact that the emails involve non-lawyers and in-house counsel. The Court noted, as discussed above, the description of the withheld documents was satisfactory to conclude that the documents were protected by attorney-client privilege.